German Federal Constitutional Court : Judgment 7 May 2008 (2 BvE 1/03)

The deployment of German soldiers in AWACS aircraft above Turkey in the war against Iraq in spring 2003, required the consent of the Bundestag (the German Federal Parliament).

The constitutional rules concerning defence which reserve the powers of Parliament regarding the approval of deployment of armed forces abroad apply when in the relevant context of deployment and the several legal and factual circumstances the involvement of German soldiers in armed conflict can concretely be expected. These conditions were fulfilled in this case. By protecting the airspace of Turkey in NATO AWACS-aircraft, German soldiers have participated in a military deployment concerning which tangible factual indications for a threatening involvement in armed conflict existed.

This important judgment is a further clarification of the case law on the government’s and parliament’s respective powers in the field of foreign and security policy; it subjects the power to decide on the question whether deployment on missions abroad requires parliamentary approval to full judicial scrutiny.

Source

The following abstract is based on the press release of the BVerfG http://www.bundesverfassungsgericht.de/>; the full text of the judgment is found at

http://www.bverfg.de/entscheidungen/es20080507_2bve000103.html

(in German).

The judgment is essentially based on the following grounds:

1. In its judgment of 12 July 1994, the BVerfG derived from the totality and context of constitutional provisions on defence, the general principle according to which every deployment of armed forces needs the constitutive, and principle prior, permission of the German Bundestag. According to this judgment, the permission of Art. 24 (2) Grundgesetz to participate in a mutual collective security system is the constitutional basis for the participation of the Bundeswehr (German armed forces) in deployments outside the federal territory in so far as this is in the framework of and is in accordance with the rules of such a system. According to Art. 59 (2) , first sentence of the Grundgesetz, the German Bundestag must consent to the treaty which is at the basis of a mutual collective security system. The implementation of the treaty in practice, and the carrying out of the programme of integration laid down in it, to the contrary, is the task of the federal government. The German participation in the overall strategy and in the decision making concerning concrete deployments of the Alliance is therefore mainly in the hands of the federal government.

2. The federal government’s discretion as to the policy formation of the alliance does not, however, include the decision of whom within the state determines whether soldiers of the Bundeswehr shall participate in a concrete deployment to which the alliance has decided. Because of the political dynamics of an alliance it is all the more important that the increasing responsibility for the deployment of armed forces is in the hands of the representative organ of the people. To that extent, the constitutional parliamentary prerogative constitutes an essential corrective for the limits of the transfer of parliamentary responsibility in the field of foreign security policy. The German Bundstag is called to take the fundamental, constitutive decision; to him pertains the responsibility for an armed deployment abroad of the Bundeswehr. With a view to the function and meaning of constitutional defence privilege of parliament, its scope should not be determined in a restrictive manner. The parliamentary approval requirement must be interpreted in favour of parliament (parlamentsfreundlich). If and to the extent that a parliamentary competence in the form of a right of co-decision in the sphere of constitutional defence law can be derived from the Grundgesetz, there cannot exist an independent and autonomous decision-making power for the federal government. The parliamentary approval reserve is an constructive element of the separation of powers, not its infringement.

3. A deployment of armed forces which under the constitution can only be allowed on the basis of a constitutive consent of the Bundestagexists if German soldiers are engaged in armed activities. For the parliamentary approval reserve it is not necessary whether armed activities in the sense of a battle have already occurred, but whether when in the relevant context of deployment and the particular legal and factual circumstances the involvement of German soldiers in armed conflict can concretely be expected. The mere possibility that it comes to armed confrontations (bewaffnete Auseinandersetzung) is not sufficient. Only the qualified expectation of involvement in armed confrontations lead to the necessity of parliamentary approval of the deployment abroad of German soldiers. For this on the one hand sufficiently tangible factual indications that a deployment according to its purpose, the concrete political and military circumstances as well as the rules of engagement can issue into the use of armed force. On the other hand, there must exist an especially closeness to the use of armed force. Accordingly, such involvement should be directly expected. An indication for the pending involvement of German soldiers in armed confrontations exists when they carry arms abroad and are empowered to make use of them.

The question whether an involvement of German soldiers in armed confrontations can be judicially be fully scrutinized. A non-justiciable or only marginal judicial review of the federal government’s discretion to assess the risks or to predict how the situation might evolve does not exist.

4. In accordance with this standard for review, the participation of German soldiers in the NATO surveillance of Turkish airspace from 26 February to 17 April 2003, was a deployment of armed forces which in accordance with the constitutional defence reserve of parliamentary approval needed the consent of the German Bundestag. With the surveillance of Turkish airspace in NATO AWACS-aircraft , German soldiers have participated in a military mission for which tangible factual indications of a threatening involvement in armed confrontations existed. The AWACS reconnaissance aircraft formed part of a system of concrete military protective measures against an attacked which was feared aad against NATO territory. The surveillance of Turkish airspace was from the beginning aimed at a possible military confrontation with Iraq. AT least from 18 March 2003, NATO had prepared for such a confrontation, as the beginning of military battle in Iraq was generally expected. There existed considerably more than a mere abstract possibility of armed clashes. There rather existed tangible factual indications for an expected involvement of NATO in a military confrontations.

An involvement of German soldiers in military confrontations was aloso directly to be expected. At the latest, with the broadening of the rules of engagement due to the worsening situation, the involvement of German soldiers only depended on whether and when Iraq would undertake and attack on Turkey.